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State v. Bennett

Court of Appeals of Oregon

August 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHELLE RENEE BENNETT, Defendant-Appellant.

          Submitted February 5, 2016

         Multnomah County Circuit Court 14VI22054 Jon Ghastin, Judge pro tempore.

          Michelle Renee Bennett fled the brief pro se.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

          Before DeVore, Presiding Judge, and Lagesen, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for operating a motor vehicle while using a mobile communication device, ORS 811.507 (2013). She contends that she was entitled to an acquittal because her conduct-talking on her cell phone while driving for the purpose of coordinating deliveries of pork products from her family's farm-fell within the statute's agricultural-purposes exemption, ORS 811.507(3)(b) (2013). Held: Based on its text, context, and legislative history, the exemption in ORS 811.507(3)(b) (2013) for "the purpose of farming or agricultural operations" encompasses activities associated with the farm business as a whole, including the delivery of agricultural products to market. Consequently, the trial court erred in entering a judgment of conviction.

         Reversed.

         [287 Or. 339] DEVORE, P. J.

         Defendant appeals a judgment of conviction, after a bench trial, of operating a motor vehicle while using a mobile communication device, ORS 811.507 (2013).[1] She contends that the trial court should have entered a judgment of acquittal because, although she was using her cell phone while driving, she was doing so to coordinate deliveries of agricultural products from her farm and, thus, her conduct falls within the statute's exemption for using such a device "for the purpose of farming or agricultural operations." ORS 811.507(3)(b). We agree with defendant and, accordingly, reverse the judgment of conviction.

         The pertinent facts are undisputed. Defendant was driving south on 1-5 near the Fremont Bridge one afternoon in bumper-to-bumper traffic. Officer Byrd with the Portland Police Bureau Traffic Division drove up next to defendant and saw that she was holding a cell phone to her ear as she was talking into it. Her window was open. Byrd asked defendant to put the phone down. She yelled back, without putting the phone down, "I'm doing work. You can't give me a ticket." Byrd stopped her, and defendant explained that she was conducting business for her family pig farm, coordinating deliveries with her father, the farm owner. Byrd issued defendant a citation for violating ORS 811.507, operating a motor vehicle while using a mobile communication device.

         At the hearing on the citation, defendant admitted that she had been using a cell phone while driving, but testified that she was talking to her father, the owner of their family farm, in order to coordinate deliveries of pork products to various stores and restaurants. She argued that ORS 811.507 "state[s] that we are able to be on the phone for agricultural purposes" and that "delivery of [the product produced on a farm]" is an "agricultural operation" for purposes of the statutory exemption. The trial court credited defendant's factual account-that she was "part of the agricultural business" and was discussing the delivery of a farm [287 Or. 340] product when Byrd cited her-but rejected her construction of ORS811.507(3)(b):

"[U]nder the facts and circumstances here, I don't find that making deliveries, whether it's for an agricultural product that was produced as part of your farming and agricultural operation, that the delivery itself is-fits within the exemption here[.]"

         The court entered a judgment of conviction for violation of ORS 811.507, a Class C traffic infraction, and fined defendant $80.

         On appeal, defendant contends that the court erred in entering the conviction because her conduct in using her cell phone while driving was "for the purpose of farming or agricultural operations, " within the meaning of ORS 811.507(3)(b), and, therefore, the statute does not apply. "When a defendant's challenge to the legal sufficiency of the state's evidence depends upon the meaning of the statute defining the offense, we review the trial court's construction of the statute for legal error." State v. Holsclaw, 286 Or.App. 790, 792, ___P.3d___(2017); see also State v. Baranovich, 241 Or.App. 280, 284, 249 P.3d 1284, rev den, 350 Or. 571 (2011) (a defendant may preserve a challenge to the legal sufficiency of the evidence in a bench trial by raising the issue during closing argument).

         In construing the meaning of a statute, our goal is to discern the intent of the legislature. We do that by considering the text and context, as well as any pertinent legislative history. If the statute's meaning remains uncertain, we may then apply maxims of statutory construction. State v. Walker, 356 Or. 4, 13, 333 P.3d 316 (2014); see also State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009) (explaining statutory construction methodology).

         As relevant, ORS 811.507 provides:

"(2) A person commits the offense of operating a motor vehicle while using a mobile communication device if the person, while operating a motor vehicle on a highway, uses a mobile communication device.[2]
[287 Or. 341] "(3) This section does not apply to a person who activates or deactivates a mobile communication device or a function of the device or who uses the device for ...

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